Citation Nr: 0633368
Decision Date: 10/27/06 Archive Date: 11/14/06
DOCKET NO. 05-04 578 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
REPRESENTATION
Appellant represented by: South Carolina Office of
Veterans Affairs
ATTORNEY FOR THE BOARD
K. Osborne, Senior Counsel
INTRODUCTION
The veteran had active military service from January 1968 to
August 1969. This matter comes before the Board of Veterans'
Appeals (Board) on appeal of an April 2004 rating decision by
the RO.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The veteran currently has a diagnosis of hepatitis C. The
veteran claims that he has hepatitis due to a blood
transfusion in service or due to being exposed to enemy blood
during combat. The evidence shows that the veteran engaged
in combat with the enemy, as he was awarded the Combat
Infantry Badge (CIB). Thus, his assertion that he came in
contact with enemy blood is deemed to be credible. See
38 U.S.C.A. § 1154(b). The veteran's treating physician has
offered various statements as to the etiology of the
veteran's hepatitis C. In a January 2003 statement, he
stated that the veteran's hepatitis could have come from his
intravenous drug abuse decades ago or from a transfusion in
1986. In October 2004, that same physician reported that the
veteran only used drugs 3 times and that the drugs were
administered by a physician in his office using a sterile
syringe and needle. He reported that the veteran was exposed
to a large amount of enemy blood on the battlefield. He
concluded that based on the veteran's history that his
hepatitis was contracted in Vietnam on the battlefield.
The record shows that the veteran has a long-standing history
of drug abuse. The Board finds that an opinion which takes
into consideration the veteran whole history should be
obtained. The Board notes that the veteran is service-
connected for PTSD as a result of his combat service. It is
unclear whether the veteran's service-connected PTSD caused
the veteran's drug abuse which caused the veteran's hepatitis
C. The requested opinion should also address the
relationship, if any, between the veteran's intravenous drug
abuse, his service-connected PTSD, and the diagnosis of
hepatitis C.
Accordingly, the case is REMANDED for the following action:
1. The veteran should be afforded a VA
medical examination to determine the
approximate onset date and etiology of his
hepatitis C. The claims folder must be
made available to the clinician for review
before the examination. Following a
review of the relevant medical records in
the claims file, to include the service
medical records; and post-service medical
records that include a history drug abuse,
obtaining a medical history from the
veteran, and any clinical or laboratory
examinations deemed necessary, the
examiner is asked to opine whether it is
at least as likely as not (50 percent or
more probability) that the veteran's
hepatitis C began during service or is
causally linked to some incident of active
duty, to exposure to blood while in
Vietnam versus a post-service etiology, to
include a blood transfusion or any history
of drug abuse.
The physician should also state whether it
is at least as likely as not that the
veteran's drug abuse is related to, or
caused by his service-connected PTSD.
The physician should then state whether it
is as likely as not that the veteran's
drug use caused the veteran's hepatitis C.
The clinician is advised that an opinion
of "more likely" or "as likely" would
support a finding of the claimed causal
relationship, whereas "less likely" would
weigh against the claim.
If the requested medical opinion cannot be
provided without resorting to pure
speculation, it should be so noted. The
examiner is also asked to provide a
rationale for any opinion expressed,
preferably with citation to the clinical
record.
2. After the foregoing, the RO should
review the veteran's claim. If the
determination is adverse to the veteran, he
and his representative should be provided
an appropriate supplemental statement of
the case and given an opportunity to
respond.
Thereafter, the case should be returned to the Board for
further appellate consideration, if appropriate. The veteran
need take no action until he is notified. The Board
intimates no opinion, either factual or legal, as to the
ultimate conclusion warranted in this case.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
K. OSBORNE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).